For many people, the first indication that a criminal investigation has begun is when law enforcement officers come to their home or office to serve a search warrant. Any mistakes in the way the search warrant was obtained or executed can result in the suppression of evidence or the dismissal of criminal charges.
Utah's Rules of Criminal Procedure in Rule 40 explains the requirements for obtaining, executing, and returning a search warrant. An attorney can help you obtain a copy of the affidavit that supported the search warrant which will tell you a lot of about the nature of the criminal investigation.
If your property was subject to a search warrant then immediately contact an experienced criminal defense attorney at Brown, Bradshaw & Moffat, LLP to discuss your case. Search warrants are used in a wide variety of criminal cases including white collar crime investigations and drug cases.
Our criminal defense attorneys can help you determine whether police officers obtained or executed the search warrant in a way that violated Utah law. Let us put our experience to work for you.
Call (801) 532-5297 today.
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The officers will obtain the search warrant after completing an application and affidavit supporting the warrant request. The affidavit explains the facts obtained during a criminal investigation that support the search warrant. In some cases, those facts are provided to the officers by a confidential informant.
The affidavit will describe the property to be searched. In some cases, the affidavit might ask that the police officers executing the search warrant not be required to give notice of authority (no-knock) and be able to execute the search warrant day or night in order to protect officer safety and possibility that evidence will be destroyed.
A district court judge will then review the affidavit and issue a warrant to search the property. In many cases, a criminal defense attorney will file a motion to suppress. The motion often shows that the officers lacked probable cause to search proportions of the house or that the warrant failed to properly describe the place to be searched or the property to be seized.
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The Fourth Amendment to the United States Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
“[T]he touchstone of [Fourth] Amendment analysis has been the question whether a person has a constitutionally protected reasonable expectation of privacy.” Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).
Police officers generally need a warrant to search a place in which a person has a reasonable expectation of privacy. The United States Supreme Court has stated, "[t]he bulwark of Fourth Amendment protection, of course, is the Warrant Clause, requiring that, absent certain exceptions, police obtain a warrant from a neutral and disinterested magistrate before embarking upon a search.”). See Franks v. Delaware, 438 U.S. 154, 164,(1978)
Before issuing a search warrant, a magistrate must determine that probable cause exists to conduct the search. This determination is based upon an affidavit filed by the investigating officer. "[A] warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter." Id.at 165.
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What happens when the affidavit that supports the search warrant contains misrepresentations or outright lies? The misrepresentations or lies might deprive the magistrate of the ability to accurately assess probable cause. “When the Fourth Amendment demands a factual showing sufficient to comprise ‘probable cause,’ the obvious assumption is that there will be a truthful showing.” Franks, 438 U.S. at 164–65.
The assumption of truth "does not mean ‘truthful’ in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily.” Id. at 165. Rather, a warrant affidavit “is to be ‘truthful’ in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” Id.
A warrant is not necessarily invalidated by the later discovery that some of the information supporting the warrant is inaccurate. Maryland v. Garrison, 480 U.S. 79, 85–86 (1987).
The United States Supreme Court framed the question before it as, “whether [a] factual mistake invalidated a warrant that undoubtedly would have been valid if it had reflected a completely accurate understanding of the building's floor plan.” Id. at 85. The Court noted that the warrant's “description of [the place to be searched] was broader than appropriate because it was based on the mistaken belief that there was only one apartment on the third floor of the building at 2036 Park Avenue.” Id.
But “the discovery of facts demonstrating that a valid warrant was unnecessarily broad does not retroactively invalidate the warrant.” Id. Because the officers could not have reasonably known of their factual mistake at the time they applied for the warrant, the Court concluded that the warrant was validly issued. Id. at 85–86.
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Rule 40(a)(3) defines the term "search warrant" as follows:
"an order issued by a magistrate in the name of the state and directed to a peace officer, describing with particularity the thing, place, or person to be searched and the property or evidence to be seized and includes an original written or recorded warrant or any copy, printout, facsimile or other replica intended by the magistrate issuing the warrant to have the same effect as the original."
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Rule 40(b) explains the grounds for issuance of a search warrant by providing:
Property or evidence may be seized pursuant to a search warrant if there is probable cause to believe it:
(b)(1) was unlawfully acquired or is unlawfully possessed;
(b)(2) has been used or is possessed for the purpose of being used to commit or conceal the commission of an offense; or
(b)(3) is evidence of illegal conduct.
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Rule 40(c) explains the conditions precedent to the issuance of a search warrant in Utah as follows:
(c)(1) A search warrant shall not issue except upon probable cause, supported by oath or affirmation, and shall particularly describe the person or place to be searched and the person, property, or evidence to be seized.
(c)(2) If the item sought to be seized is evidence of illegal conduct, and is in the possession of a person or entity for which there is insufficient probable cause shown to the magistrate to believe that such person or entity is a party to the alleged illegal conduct, no search warrant shall issue except upon a finding by the magistrate that the evidence sought to be seized cannot be obtained by subpoena, or that such evidence would be concealed, destroyed, damaged, or altered if sought by subpoena. If such a finding is made and a search warrant issued, the magistrate shall direct upon the warrant such conditions that reasonably afford protection of the following interests of the person or entity in possession of such evidence:
(c)(2)(A) protection against unreasonable interference with normal business;
(c)(2)(B) protection against the loss or disclosure of protected confidential sources of information; or
(c)(2)(C) protection against prior or direct restraints on constitutionally protected rights.
This article was last updated on Friday, March 9, 2018.
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